At SEC, the system can be deaf to whistleblowing

By Zachary A. Goldfarb
Washington Post Staff Writer
Thursday, January 21, 2010; A01

Eric Kolchinsky was an executive at Moody's, the credit rating company, when he called a top official at the Securities and Exchange Commission in September to warn that his firm might be violating securities law. He reported that Moody's was blessing mortgage-backed investments that it knew were dangerous, according to a person familiar with the conversation. The SEC official assured Kolchinsky that someone from the agency would call him back shortly.

But the call never came, Kolchinsky later told congressional investigators who were examining how the credit rating industry's failures contributed to the financial crisis. He had gone to Congress after losing patience with the SEC.

Kolchinsky is one in a series of whistleblowers who in recent years tried to tip off the SEC to potential wrongdoing, only to be ignored, misunderstood or left to wonder whether they were being listened to. The SEC has no system in place to guide how officials should handle tips and complaints from outsiders, making it difficult for investigators to take advantage of an invaluable source of information.

This failure helped to continue two of the most celebrated frauds of the last decade for several years, potentially costing unwitting investors millions of dollars. Countless others may have been left vulnerable to shysters because of warnings that went unheeded.

Since SEC Chairman Mary L. Schapiro took office last year, she has said that fixing the holes in the process for handling tips and complaints has been a top priority. But improving the way hundreds of thousands of tips are analyzed and pursued has proven difficult.

The SEC's enforcement division got back in touch with Kolchinsky about his allegations only after he told the story publicly to a congressional committee last fall, according to a person familiar with the matter.

The SEC said it responded to Kolchinsky's concerns but declined to provide details or to say how fast it did so. Moody's said it examined his allegations and found nothing improper.

The SEC has a haphazard, decentralized system for analyzing outsider information. Tips arrive by phone, mail and e-mail to officials throughout the agency -- investor education to enforcement divisions. A study commissioned by the SEC last year and conducted by Mitre, a nonprofit group that does research for the federal government, found that the SEC lacks technology to analyze tips and complaints, as well as cohesive policies for what officials should do when they get information.

Whistleblower complaints are one of the main ways that investigators should be tipped to wrongdoing, SEC officials say, along with inconsistencies in financial filings and alerts from financial exchanges about suspicious trading patterns. But the SEC lags behind some other federal agencies in handling tips. The Internal Revenue Service, for instance, pays reward money to whistleblowers who provide credible information about tax fraud. The Federal Trade Commission has set up a call center for tips and complaints.

On top of structural problems at the SEC, agency officials individually made mistakes in handling several recent cases, sometimes violating agency rules.

Members of Schapiro's management team said they recognized problems with the system for handling whistleblowers shortly after taking over.

"There was no uniformity to it. Every division and office had its own system of recording, tracking or handling tips and complaints. That system was pretty rudimentary," said Steve Cohen, the official tasked by Schapiro to overhaul the agency's tips, complaints and whistleblower program. "We're already working to acquire and deploy technology that centralizes all of the agency's tips and complaints so they can be sorted, reviewed, analyzed and tracked."

No shortage of witnesses

The SEC's struggles were underlined over the past two years with the revelation of two huge Ponzi schemes.

In the case of Bernard L. Madoff, whistleblowers had provided credible information to various SEC units for years. The most prominent of these informants, a Boston financial analyst named Harry Markopolos, contacted the enforcement division on numerous occasions, according to the SEC's inspector general. In one instance, Markopolos provided a detailed explanation of why Madoff's business was probably a fraud. Enforcement officials listened, but they dismissed him in their internal discussions. Two former enforcement officials told the inspector general that they discounted Markopolos's information because he was not an insider in Madoff's company.

Then, a few months after the Madoff scheme exploded into the headlines, the SEC exposed a second large Ponzi scheme, run by R. Allen Stanford. But that happened five years after an insider went to the SEC, warning that Stanford might be conducting a fraudulent business.

Leyla Wydler had been a vice president at Stanford's Houston-based company when she first started asking her supervisors tough questions about what the firm did with clients' money, according to her testimony before Congress last year. Her superiors were evasive, and she ultimately was fired.

After that, she went to the National Association of Securities Dealers, a private industry regulator overseen by the SEC. The NASD dismissed her concerns. Then in September 2004, she contacted the SEC's Fort Worth office, according to her congressional testimony. She followed up with a letter to an official there, questioning whether clients' money had been invested in the way Stanford said.

She never heard from the SEC again -- until January 2009, days before the SEC finally filed a case against Stanford, according to her testimony. The agency wanted to know more about her allegations. An inspector general report from June 2009 said the SEC began looking into Stanford years earlier but struggled to build a case against him.

Turning in the tipster

In one case, it was the SEC that blew the whistle on Peter Sivere, an informant.

Sivere worked in the compliance office of New York investment bank J.P. Morgan Chase. As part of a team helping the bank furnish documents related to a 2004 SEC probe into suspected illegal trading, he found an e-mail that he thought was incriminating. According to a subsequent report by the SEC inspector general, the e-mail said J.P. Morgan was knowingly providing hundreds of millions of dollars in credit to a firm "in the business of day trading mutual funds" -- which is illegal.

Sivere asked his superiors if this e-mail had been turned over to the SEC but did not get an answer. Instead, he was taken off the SEC project, according to the inspector general report. Sivere accessed his superiors' e-mail accounts to retrieve relevant e-mails, then contacted the SEC. He told the agency that he had relevant documents and asked whether he could receive a reward. He was told he was not eligible, but he turned over the documents anyway.

Sivere informed J.P. Morgan that he had contacted the SEC. The company fired him, partly on the grounds that he had "sought payment from the SEC to provide documents and information to them outside of the normal scope of their investigation," according to a letter company lawyers wrote defending his dismissal. J.P. Morgan declined to comment for this article.

Sivere was shocked to learn that J.P. Morgan knew he had inquired about a bounty. He had been promised that his discussions with the SEC were confidential.

An SEC internal probe found that an investigator working on the case disclosed Sivere's information to J.P. Morgan's lawyers, violating the agency's confidentiality rules. The inspector general recommended that the SEC official who made the disclosure be referred for disciplinary action. None was taken, according to agency documents.

Retraining the watchdog

Cohen, who is overhauling the SEC's whistleblower practices, said a database, jury-rigged from existing technology, will be in place this month to centralize all tips and complaints. Officials said that by the end of 2010, they hope to develop technology that would not only centralize the data but also automatically analyze them for patterns to help officials prioritize cases.

Currently, the SEC is setting procedures for responding to whistleblowers and is creating an office of market intelligence to coordinate how the agency's various units respond to tips.

The agency also wants to be able to reward whistleblowers, which it can only do now for insider-trading cases. The SEC has requested that Congress pass legislation giving it the ability to offer financial rewards to people who provide evidence of violations of securities law.

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